Restoring Our Broken Judicial Confirmation Process

I always cheer up immensely if an attack is particularly wounding because I think, well, if they attack one personally, it means they have not a single political argument left.

-Margaret Thatcher1

It is a great honor to be the first Texan on the U.S. Senate Judiciary Committee since 1961,2 as well as the first Texan chairman of the Senate Subcommittee on the Constitution since the subcommittee was first established in 1947. It is also a source of great frustration, however.

The Senate's judicial confirmation process is badly broken. On April 30, 2003, the bipartisan class of freshman senators of the 108th Congress sent a letter to Senate leadership declaring that "the judicial confirmation process is broken and needs to be fixed," and that "the United States Senate needs a fresh start."4 That same day, Senator Chuck Schurner of New York similarly wrote that "the judicial nomination and confirmation process [i]s broken and . . . we have a duty to repair it."5 A few days later, Senator Dianne Feinstein of California concurred that the judicial selection process "is going in the wrong direction. The debate between the Senate and the Executive Branch over judicial candidates has become polarized and increasingly bitter."6 ABA President Alfred P. Carlton, Jr. has concluded that, as the result of the Senate's broken confirmation process, "[t]here is a crisis in our federal judiciary, constituting a clear and present danger to the uniquely American foundation of our tripartite democracy-an independent judiciary." Even The New York Times editorial page-one of the nation's most hostile opponents of President Bush's well-qualified judicial nominees-has recognized that "the judicial selection process is broken."

In a recent article in another law journal,' I noted that the Senate has long been plagued by unfortunate and unnecessary delay in its consideration of judicial nominees under Presidents of both parties, yet the problem has only grown worse in the current Senate. Today, a bipartisan majority of senators is ready and willing to consider nominees in a timely fashion and hold up-and-down votes after conducting a reasonable inquiry. But a partisan minority of senators is engaged in unprecedented filibusters to prevent such votes from being taken-in direct offense to the Constitution, the separation of powers, and judicial independence. The article concludes that filibusters of judicial nominees are the most virulent form of delay imaginable, and that they must be stopped.

The current filibuster controversy reminds me of criticisms, made by myself and others, about Texas's system of selecting judges-a system with flaws that are actually rather mild by comparison. It has long been my view that partisan elections are not the right way to go for selecting judges, because it excessively politicizes the selection process.10 But whatever the problems the various states may have in their judicial selection systems, nothing compares to how badly broken the system of judicial confirmation is here in Washington, D.C. In Texas, we have debate and discussion, and that is always followed by a vote. Whatever else you might say about the process, we always finish it. We always hold a vote." And of course, voting is precisely what we in the U.S. Senate were elected to do. Vote up or down, but, as the Washington Post admonished in a February editorial, "Just Vote."12 Filibusters represent the exact opposite view-never vote, just delay and obstruct, by any means necessary.

Filibusters are not the only problem with the Senate's judicial confirmation process, however. As a former judge, I have been deeply concerned that, throughout this past year, numerous special interest groups-groups that claim to champion civil rights and racial and religious equality-have supported the use of dangerous, divisive, and even unconstitutional arguments, as well as improper tactics like the filibuster, to deny confirmation to federal judicial nominees. …

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